Nation’s Largest Raw Milk Dairy Sues FDA Over Interstate Ban

Dec 17, 2012 by Real Raw Milk Facts

Food Safety NewsBy Cookson Beecher | December 17, 2012

Organic Pastures, the nation’s largest raw milk dairy, has launched a lawsuit against the U.S. Food and Drug Administration for allegedly turning its back on the dairy’s request for the agency to change its current law banning sales of raw milk across state lines.

Raw milk is milk that hasn’t been pasteurized to kill potentially harmful, and at times deadly, pathogens such as E. coli, Listeria, Salmonella and Campylobacter, all of which have been been linked to raw milk food poisoning outbreaks in a number of states across the nation.

The Fresno-based dairy submitted its request to the agency back in December 2008. According to statute, the FDA is supposed to respond to this sort of request — referred to by the agency as a “citizen petition” — in 180 days. The FDA promotes this administrative procedure as a way to examine issues such as this to see if changes should be made.

In a similar lawsuit filed last year by the Farm-to-Consumer Legal Defense Fund, which focused on the agency’s ban on interstate sales of raw milk, FDA faulted the defense fund for bypassing this administrative procedure. It told the court that filing a citizen petition allows the FDA “to consider and address plaintiffs’ concerns and could potentially resolve those concerns, or at the very least might crystalize the issues in contention.” The federal court dismissed the case in April 2012.
Time to Get On with It

Organic Pastures’ lawsuit against the FDA was filed on Dec. 12, 2012 in U.S. District Court in the Eastern District of California. It names Secretary of Health and Human Services Kathleen Sebelius and U.S. Food and Drug Administration Commissioner Margaret Hamburg – as well as the agencies they head – as defendants.

As far as the dairy’s owner, Mark McAfee, is concerned, it’s high time for the feds to stop dragging their bureaucratic heels on this issue.

McAfee told Food Safety News that the agency did send him a notice 90 days after he sent the request (citizen petition) in 2008, but it was just to let him know that it had received it. And that was it, said McAfee. But after some recent prodding on his behalf by Gary Cox, general counsel for the Farm-to-Consumer Legal Defense Fund, the FDA said they were “working on it,” but that it wasn’t a priority. McAfee said that was about six months ago and that nothing has happened since.

“The time is ripe now,” he said, referring to increasing consumer demand for raw milk and why he wants some action on his request.

Pure and simple, said McAfee, all that Organic Pastures is asking for is that the agency promptly come up with a ruling on the petition. As part of the legal action, the dairy is also seeking to recover legal fees.